1

IN THE SUPREME COURT OF INDIA

CIVIL ORIGINAL JURISDICTION
SUO MOTU WRIT PETITION (CIVIL) NO. 2 OF 2015

IN THE MATTER OF:-

In Re: Muslim Womens Quest for Equality Petitioner

VERSUS

Jamiat Ulama-i-Hind & Ors. Respondents

AND
IN THE MATTER OF:-

WRIT PETITION (CIVIL) NO. 118 OF 2016

Shayara Bano Petitioner

VERSUS

Union of India &Ors. Respondents

WRITTEN SUBMISSIONS ON BEHALF OF ALL INDIA MUSLIM

PERSONAL LAW BOARD

1. That the aforementioned matters came up for hearing before this

Honble Court on February 16,2017 and this Honble Court was
pleased to direct all parties to file their written submissions on or
before March 30,2017.

2. That accordingly, the All India Muslim Personal Law Board

(hereinafter referred to as AIMPLB or the Board or the
Respondent Board), which has been impleaded as Respondent No.
3 in Suo Motu Writ Petition No. 2 of 2015 and as Respondent No. 8
of Writ Petition (Civil) No. 118 of 2016, is putting forth its
submissions in respect of the issues arising in the present matter.

3. That the Respondent Board wishes to address the following

questions: -

A. Whether the present petitions are maintainable?

B. Whether the Muslim Personal Laws can be tested as being

violative of Part III of the Constitution?
 2
C. Whether the Court of law can interpret religious scriptures of
any religious denomination contrary to the interpretation put
on it by the religious books and authorities, held authentic by
such denomination?

D. Whether the impugned principles of Muslim Personal law, i.e.

Triple Talaq in one sitting, halala and polygamy, form an
essential part of the religion of Islam as interpreted by four
schools of Muslim Personal Law viz. Hanafi, Hanbali, Shafai
and Maliki; and therefore intra vires the Constitution of India?

E. Whether the provisions of the Muslim Personal laws sought to

be reviewed by way of the present Petitions are protected by
Articles 25 and 26 read with Article 29 of the Constitution of
India?

F. Whether International instruments to which India is

party/signatory or domestic practices of foreign countries can
have a bearing on the issues in the present petition?

4. Whether the present petitions are maintainable?

I. Present petitions seek to enforce fundamental rights against

private parties

4.1 At the outset, it is submitted that the present Petitions are not
maintainable as the Petitioners seek to enforce Fundamental Rights
against private parties. It is submitted that the protection guaranteed
by the Articles 14, 15 and 21 is intended to be available against the-
Legislature and the Executive and not against private individuals. It
is submitted that in the present case, the Petitioners are seeking
judicial orders which are completely outside the purview of Article
32. Private Rights cannot be enforced against individual citizens
under Article 32(1).

II. Issues arising in the present petition concern legislative policy

4.2 In any event the issues raised by the way of the Present Petitions
are matters of legislative policy and fall outside the sphere of the
judiciary. This Honble Court has already taken the view in several
cases including the cases reported in Krishna Singh v. Mathura Ahir
(1981) 3 SCC 689, Maharishi Avadesh v. Union of India (1994)
Suppl. (1) SCC 713, Madhu Kishwar v. State of Bihar (1996) 5 SCC
125 and Ahmedabad Women Action Group v. Union of India (1997)
3 SCC 573, wherein identical questions had been raised, that such
questions do not fall within the ambit of judicial review.
 3
4.3 The questions being examined by the Honble Court in the present
matter have already been examined by this Court in Ahmedabad
Women Action Group v. Union of India (1997) 3 SCC 573 (AWAG
Case). In that case, inter alia the following issues were considered
by this Honble Court: -

(i) Whether Muslim Personal Law which allows Polygamy is void

as offending Articles 14 and 15 of the Constitution.

(ii) Whether Muslim Personal Law which enables a Muslim male

to give unilateral Talaq to his wife without her consent and
without resort to judicial process of courts, is void as it offends
Articles 13, 14 and 15 of the Constitution.

(iii) Whether the mere fact that a Muslim Husband takes more
than one wife is an act of cruelty

4.4 While considering the above issues this Honble Court declined to
entertain the abovementioned issues stating that these were matters
wholly involving issues of State Policies with which the Court will not
ordinarily have any concern. The Honble Court also held that these
issues are matters which are to be dealt with by the legislature.

4.5 Even prior to the decision in AWAG Case, this Honble Court in the
case of Maharshi Avadhesh v. Union of India, 1994 Supp (1) SCC
713 had taken a similar view. In that case a petition under Article 32
of the Constitution of India was filed seeking: -

(i) A writ of mandamus to the respondents to consider the

question of enacting a common Civil Code for all citizens of
India.

(ii) To declare Muslim Women (Protection of Rights on Divorce)

Act, 1986 as void being arbitrary and discriminatory and in
violation of Articles 14 and 15 Fundamental Rights and
Articles 44, 38, 39 and 39-A of the Constitution of India.

(iii) To direct the respondents not to enact Shariat Act in respect

of those adversely affecting the dignity and rights of Muslim
women and against their protection.

4.6 This Honble Court while dismissing the Writ Petition observed that-
These are all matters for legislature. The Court cannot legislate in
these matters.
 4
5. Whether the Muslim Personal Laws can be tested as being
violative of Part III of the Constitution?

I. Whether the expression Law in force used in Article 13(1)

includes Personal Law?

5.1 Justice Chagla in State of Bombay v. Narasu Appa Mali (AIR 1952
Bom 84), observed as follows:

16. That this distinction is recognised by the Legislature is

clear if one looks to the language of S. 112, Government of
India Act, 1915. That section deals with the law to be
administered by the High Courts and it provides that the High
Courts shall, in matters of inheritance and succession to
lands, rents and goods, and in matters of contract and dealing
between party and party, when both parties are subject to the
same personal law or custom having the force of law, decide
according to that personal law or custom, and when the
parties are subject to different personal laws or customs
having the force of law, decide according to the law or custom
to which the defendant is subject. Therefore, a clear distinction
is drawn between personal law and custom having the force of
law. This is a provision in the Constitution Act, and having
this model before them the Constituent Assembly in
defining law in Art. 13 have expressly and advisedly
used only the expression custom or usage and have
omitted personal law. This, in our opinion, is a very clear
pointer to the intention of the Constitution-making body
to exclude personal law from the purview of Art. 13. There
are other pointers as well. Article 17 abolishes untouchability
and forbids its practice in any form. Article 25(2)(b) enables
the State to make laws for the purpose of throwing open of
Hindu religious institutions of a public character to all classes
and sections of Hindus. Now, if Hindu personal law became
void by reason of Art. 13 and by reason of any of its provisions
contravening any fundamental right, then it was unnecessary
specifically to provide in Art. 17 and Art. 25(2)(b) for certain
aspects of Hindu personal law which contravened Arts. 14 and
15. This clearly shows that only in certain respects has the
Constitution dealt with personal law. The very presence of
Art. 44 in the Constitution recognizes the existence of
separate personal laws, and Entry No. 5 in the Concurrent
List gives power to the Legislatures to pass laws affecting
personal law. The scheme of the Constitution, therefore,
seems to be to leave personal law unaffected except
where specific provision is made with regard to it and
leave it to the Legislatures in future to modify and
 5
improve it and ultimately to put on the statute book a
common and uniform Code. Our attention has been drawn
to S. 292, Government of India Act, 1935, which provides that
all the law in force in British India shall continue in force until
altered or repealed or amended by a competent Legislature or
other competent authority, and S. 293 deals with adaptation of
existing penal laws. There is a similar provision in our
Constitution in Art. 372(1) and Art. 372(2). It is contended that
the laws which are to continue in force under Art. 372(1)
include personal laws, and as these laws are to continue in
force subject to the other provisions of the Constitution, it is
urged that by reason of Art. 13(1) any provision in any
personal law which is inconsistent with fundamental rights
would be void. But it is clear from the language of Arts.
372(1) and (2) that the expression laws in force used in
this article does not include personal law because Art.
373(2) entitles the President to make adaptations and
modifications to the law in force by way of repeal or
amendment, and surely it cannot be contended that it was
intended by this provision to authorise the President to
make alterations or adaptations in the personal law of any
community. Although the point urged before us is not by any
means free from difficulty, on the whole after a careful
consideration of the various provisions of the Constitution, we
have come to the conclusion that personal law is not included
in the expression laws in force used in Art. 13(1).

5.2 Further, Justice Gajendragadkar in State of Bombay v. Narasu Appa

Mali (AIR 1952 Bom 84), observed as follows:

The Constitution of India itself recognises the existence of

these personal laws in terms when it deals with the topics
falling under personal law in item 5 in the Concurrent List
List III. This item deals with the topics of marriage and divorce;
infants and minors; adoption; wills, intestacy and succession;
joint family and partition; all matters in respect of which parties
in judicial proceedings were immediately before the
commencement of this Constitution subject to their personal
law. Thus it is competent either to the State or the Union
Legislature to legislate on topics falling within the purview of
the personal law and yet the expression personal law is not
used in Art. 13, because, in my opinion, the framers of the
Constitution wanted to leave the personal laws outside the
ambit of Part III of the Constitution. They must have been
aware that these personal laws needed to be reformed in
many material particulars and in fact they wanted to abolish
these different personal laws and to evolve one common
code. Yet they did not wish that the provisions of the personal
 6
laws should be challenged by reason of the fundamental rights
guaranteed in Part III of the Constitution and so they did not
intend to include these personal laws within the definition of
the expression laws in force. Therefore, I agree with the
learned Chief Justice in holding that the personal laws do not
fall within Art. 13(1) at all.

5.3 This view has been confirmed by this Honble Court in Ahmedabad
Women Action Group v. Union of India, (1997) 3 SCC 573. In view of
the position that provisions of personal laws cannot be challenged
by the reason of fundamental rights, it is submitted that this Honble
Court cannot consider the constitutional validity of the principles of
Muslim Personal law relating to Triple Talaq in one sitting, halala and
polygamy.

II. Present petitions are misconceived as they are based on

incorrect understanding of the Muslim Personal law as followed
by four schools of Sunni Persuasions, namely
Hanafi, Shafi'i, Maliki and Hanbali.

5.4 It is further submitted that the present petitions are misconceived as

they are based on incorrect understanding of the Muslim Personal
law as followed by four schools of Sunni Persuasions, namely
Hanafi, Shafi'i, Maliki and Hanbali. It is relevant to note that the issue
concerning Triple Talaq has already been decided by this Honble
Court in the case of Shamim Ara v. State of UP, (2002) 7 SCC 518
wherein this Honble Court has placed explicit measures to check
the pronouncement of Triple Talaq by the husband by laying the
down test of reasonable cause and prior reconciliation. The
principles laid down in Shamim Ara are the law as declared by this
Honble Court and as such a binding precedent. In view of the ratio
of the decision in Shamim Ara, the validity of Triple Talaq in one
sitting is not res integra, the law in this respect has already been
declared by this Honble Court unless it is reviewed/re-considered by
this Honble Court.

5.5 Further the concept of halala is misunderstood by the

Petitioners/Opponents. It is submitted that when a Muslim woman is
divorced, she is prohibited from marrying her former husband unless
she has an intervening marriage with another man, this concept of
intervening marriage is distortedly called Nikah halala by the
Petitioners/Opponents. There is no concept of nikah halala in
Islamic Jurisprudence. Further, this concept of halala is grossly
misunderstood, it is submitted that this procedure needs to be
followed only if the woman has been divorced from her first husband
by way of Triple Talaq. In the other nine forms of separation, the
process of Halala is not a precondition for the woman to marry her
former husband. Further, the intervening marriage of the woman
 7
should happen in usual course, with the solemn intention of living
with the subsequent husband, and the consequent separation
should also be under natural course due to his death or divorce. In
fact, there are unequivocal and unambiguous Hadiths of the Prophet
Muhammad (PBUH) where mock marriages and mock divorces is
reported to be a cause of curse from the Almighty Allah. It is in the
said Hadiths that the reference to the term Halala is found, though
it is not mentioned in the Noble Quran. Whereas in any case, the
term Nikah Halala is not found even in Hadith. The Hadith of the
Prophet Muhammad (Peace be upon Him) in condemning Halala
are as follows:

Allahs curse is on the one who makes a contract or

agreement for Halala (Both the one who carries out Halala
and the one who it is done for. (Sunan al Darami / Mishkat al
Masabih)

Allah has cursed the muhallil (one who marries a woman and
divorces her so that she can go back to her first husband) and
the muhallal lahu (first husband).

6. Whether the Court of law can interpret religious scriptures of

any religious denomination contrary to the interpretation put on
it by the religious books and authorities, held authentic by such
denomination?

6.1 The preamble of the Constitution clearly enshrines values of liberty

of thought, expression, belief, faith, worship. Further, Article 25 of
the Constitution, guarantees freedom of conscience and freedom to
profess, practice and propagate religion. Article 25 guarantees
individual freedom of conscience subject to public order, morality
and health and to the other provisions of the third part of the
Constitution. Article 26 of the Constitution grants freedom to every
religious denomination or any section thereof to manage its own
affairs in matters of religion. Interpreting the aforesaid Articles, this
Honble Court in the case of The Commissioner, Hindu Religious
Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar of Sri
Shirur Mutt AIR 1954 SC 282, 1954 SCR 1005 has held that those
Articles protect the essential part of religion and further that when a
question arises as to what constitutes essential part of religion, the
same should primarily be ascertained with reference to the Doctrines
of that religion itself.

6.2 This Honble Court in Krishna Singh v. Mathura Athir (1981) 3 SCC
689, has held that the Part III of the Constitution does not touch
upon the personal laws of the parties. This Honble Court also
observed that the High Court in applying the personal laws of the
 8
parties could not introduce its own concepts of modern times but
should enforce the law as derived from recognized and authoritative
sources. It is submitted that since Part III of the Constitution does not
touch upon the personal laws of the parties, this Honble Court
cannot examine the question of constitutional validity of the
impugned principles of Muslim Personal law, i.e. Triple Talaq in one
sitting, halala and polygamy as followed by four schools of Sunni
Persuasions, namely Hanafi, Shafi'i, Maliki and Hanbali.

6.3 Even the Honble Bombay High Court in State of Bombay v. Narasu
Appa Mali (AIR 1952 Bom 84) had observed that the framers of the
Constitution wanted to leave the personal laws outside the ambit of
Part III of the Constitution as they were aware that these personal
laws needed to be reformed in many material particulars and they
did not wish that the provisions of the personal laws should be
challenged by reason of the fundamental rights guaranteed in Part III
of the Constitution and accordingly they did not intend to include
these personal laws within the definition of the expression laws in
force. Therefore, personal laws do not fall within Article 13(1) and
consequently cannot be challenged on the ground of being violative
of Part III of the Constitution of India.

6.4 This view has been affirmed by this Honble Court in Ahmedabad
Women Action Group v. Union of India (1997) 3 SCC 573. In view of
the position that provisions of personal laws cannot be challenged
by the reason of fundamental rights, it is submitted that this Honble
Court cannot consider the constitutional validity of the impugned
principles of Muslim Personal law, i.e. Triple Talaq in one sitting,
halala and polygamy as followed by four schools of Sunni
Persuasions, namely Hanafi, Shafi'i, Maliki and Hanbali.

6.5 Additionally, it is submitted that personal laws do not derive their

validity on the ground that they have been passed or made by a
legislature or other competent authority. The foundational sources of
personal law are their respective scriptural texts. The Mohammedan
Law is founded essentially on the Holy Quran and sources based on
the Holy Quran and thus it cannot fall within the purview of the
expression laws in force as mentioned in Article 13 of the
Constitution of India, and hence its validity cannot be tested on a
challenge based on Part III of the Constitution.

6.6 As averred above, it is these foundational principles which are the

basis of Muslim Personal Law and like any other religion, they are
peculiar to Islam and cannot be challenged on the ground of being
violative of Part III of the Constitution of India.

6.7 The Honble High Court of Bombay, in Narasu Appa Malis Case
(Supra) has clarified that Article 13 of the Constitution of India does
 9
not provide for personal laws. It has been clarified that the words a
custom or usage in Article 13(3) cannot subsume personal laws. A
Custom or usage is distinct from Personal Law and many a time,
exceptions to personal laws. This is further supported by the fact that
Entry 5 in List III expressly mentions the phrase personal law which
implies first, that the omission in Article 13(3)(a) was conscious and
secondly, that the intention of the Framers was to leave it to the
legislature to reform personal laws and not subject them to scrutiny
by the judiciary. Further, Section 112 of the Government of India
Act, 1915, one of the models that were before the Constituent
Assembly in the drafting of the present Constitution used both the
phrases custom and usage and personal law separately. The latter
phrase was however, omitted in later drafts. Moreover, if personal
laws were open to scrutiny under Article 13, both Article 17 and
Article 25(2) (b) would be rendered redundant. This is because the
evils that these Articles aim to curb would anyway be remediable as
a violation of fundamental rights.

6.8 It is therefore submitted that since Part III of the Constitution does
not touch upon the personal laws of the parties, this Honble Court
cannot examine the question of constitutional validity of the
impugned principles of Muslim Personal law, i.e. Triple Talaq in one
sitting, halala and polygamy as followed by four schools of Sunni
Persuasions, namely Hanafi, Shafi'i, Maliki and Hanbali.

6.9 Therefore, Constitutional scheme clearly provides that judiciary

which is one of the important organs of the State shall not lay down
religion for any religious denomination or section thereof and
whenever the Court is confronted with any religious issues, it will
look to the religious books of a particular denomination held sacred
by it. In other words, there is no scope for the Court to import its
own views while dealing with the religious questions or scriptures or
beliefs of any religious denomination. In fact the Courts have
consistently resisted the temptation to embark on hazardous
adventure to interpret religious scriptures.

I. Courts ought to apply the principle of judicial restraint, and

should not deal with the issue of constitutional interpretation
unless such an exercise is but unavoidable

6.10 It is submitted that this Honble Court in Shabnam Hashmi v. Union

of India (2014) 4 SCC 1, this Honble Court has held that, Personal
law would always continue to govern any person who chooses to
submit himself to such law until such time that the vision of a
Uniform Civil Code is not achieved. This Court further held that, it
was a well settled principle of judicial restraint that required that the
 10
Courts to not deal with issues of constitutional interpretation unless
such an exercise was but unavoidable.

6.11 It is submitted that in the present matters also, all Muslims do have a
choice of submitting themselves to Personal law or non-
denominational law, for instance a Muslim marriage can be
registered under Section 15 of the Special Marriage Act,1954 if the
parties so desire, such registration will take the marriage out of the
purview of Muslim Personal Law and the relationship of the parties
would then be governed by the provisions of the Special Marriage
Act,1954. A similar provision can be seen in the Muslim Women
(Protection of Rights on Divorce) Act, 1986, Section 5 of which gives
the parties an option to be governed by Section 125 and 128 of the
Code of Criminal Procedure, 1973. Thus, the parties always have
the option of choosing whether their marriage should be governed
by Muslim Personal Law or other non-denominational laws.

6.12 Thus, in such circumstances when it is open for all Muslims to

choose to be governed by either their own personal law or a non-
denominational law, this Honble Court ought to exercise judicial
restraint and should not prevent any Muslim from following or
deviating from his own personal law which he himself has chosen to
submit himself to.

II. Islam treats the relationship of marriage in substance a civil

contract bearing spiritual and moral overtones and undertones:

6.13 It is submitted that Shariat laws aim for life long relationship among
husband and wife and provide for all possible means to prevent
break down of a marriage. It regards Talaq (Dissolution of Marriage)
as the last resort. Shariat regards marriage as devotion and reward
is promised on all activities incidental to marriage so that Muslims
consider it with due respect as any other worshiping activity. Unlike
other personal laws, Shariat law does not keep marriage indissoluble
or compel husband and wife to stay in marriage despite all
unbearable hurdles from either side of marriage.

6.14 Like the parties negotiate Mehr before entering into matrimonial
relationship, they are free to decide upon mutually agreed upon
terms about following the procedure of Talaq within the permitted
larger Islamic Sharia stating that they shall be governed by the
School of Islamic law which does not recognize three
pronouncements of Talaq coming into effect instantaneously, if
pronounced in one sitting.

6.15 In other words, the parties to marriage in Islam have always had the
choice of agreeing upon the procedure of divorce, as permitted.
However, if the parties follow a particular school of Islamic thought,
 11
in absence of any thing contrary to that school, the parties rights
and obligations shall be governed as per the school they belong to.
No one shall be permitted to import a principle of another school to
justify the validity of provision of a separate school of thought of
Islam.

7. Whether the impugned principles of Muslim Personal law, i.e.

Triple Talaq in one sitting, Halala and Polygamy, form an
essential part of the religion of Islam as interpreted by four
schools of Muslim Personal Law viz. Hanafi, Hanbali, Shafai
and Maliki; therefore intra vires the Constitution of India?

I. Re Triple Talaq

7.1 It is submitted that in Islam, essentially, divorce is undesirable,

without a valid and compelling ground and that it is permissible only
when it is wholly unavoidable. It is submitted that though
pronouncement of Triple Talaq in one go is undesirable but
irrevocably effective. According to four schools of Sunni
Persuasions, namely Hanafi, Shafi'i, Maliki and Hanbali, the number
of pronouncements are not linked with one or more sessions. It is
the number of times Talaq is pronounced that effectuates Talaq. If
one does so twice, it will count as two, and if thrice, then it will count
as three pronouncements, which will dissolve the marriage with
immediate effect. The Quran itself declares, that:-

Divorce is twice; then either to retain in all fairness, or to

release nicely. It is not lawful for you to take back anything
from what you have given them, unless both apprehend that
they would not be able to maintain the limits set by Allah. Now,
if you apprehend that they would not maintain the limits set by
Allah, then, there is no sin on them in what she gives up to
secure her release. These are the limits set by Allah.
Therefore, do not exceed them. Whosoever exceeds the limits
set by Allah, then, those are the transgressors.

[Surah-Al- Baqarah 2:229]

7.2 Imam Bukhari, an Islamic scholar who authored one of the most
authentic (sahih) hadith collections, interprets the abovementioned
verse in the sense that Triple Talaq becomes effective, since three
pronouncements complete the process of divorce and the third
pronouncement terminates the marriage with immediate effect. His
chapter heading runs thus: The stance of those who take the
Quranic statement: Divorce can be pronounced twice, then either
honorable retention or kind release, to mean that Triple Talaq
becomes effective. (Bukhari, 2, 791)
 12
7.3 In view of the above, it is clear that though pronouncement of talaq
thrice at one go is undesirable but in view of the aforesaid verse of
the Holy Quran, it is clear that three pronouncements, howsoever
they may be made result in valid dissolution of marriage. Thus, once
three pronouncements of divorce are made, the marriage dissolves
and the woman becomes unlawful or haram to the man who had
pronounced divorce.

7.4 It is further submitted that the Holy Quran mandates every follower
of Islam to obey Allah and the Messenger [i.e. the Apostle of Allah
(PBUH)] (Surah-Al-Nisa 4:59, Surah-Al-Anfal 8:20). Further, the Holy
Quran also clarifies that when Allah and his Messenger have
decided a matter, the believers cannot defer from the said decision,
in fact if the believer ignores the said decision and follows a course
of his own choice, he is said to have strayed away in manifest error
(Surah-Al-Ahzab 33:36). It has also been stated in the Holy Quran
that the believer is bound to accept the command of the Messenger
and is bound to avoid whatever the Messenger forbids (Surah-Al-
Hashr 59:7). Thus, it is an integral part of the religion of Islam that all
Muslims must abide by the decision of Allah and his Messenger, and
when the Messenger has directed the followers to do a certain thing
they are duty bound to do it.

7.5 It is submitted that there have been instances at time of the Prophet
(PBUH) where the Prophet has though reprimanded the Husband for
resorting to an undesirable method of pronouncing divorce by way of
Triple Talaq, but has also thereafter ensured separation between the
parties, even when the Husband was repenting and willing to take
the wife back in marriage. Some of these instances, as stipulated in
the Hadiths, are provided below: -

a) When Abu Hafs resorted to Triple Talaq, the Prophet (PBUH)

held it as valid. All the three pronouncements were made with
a single word, as is specified by Daraqutni (Daraqutni, Kitab
Al- Talaqwa Al- Khulawa Al- Aiyla, 4, 12, Hadith number
3922).

b) Anas recounts on Muadhs authority: We heard the Prophet

(Pbuh) saying: O Muadh, whoever resorts to bidaa divorce, be
it once, twice, or thrice, we will make his divorce effective
(Daraqutni, 2, 444, Kitab al- Talaqwa Al- Khulawa al- Aiyla,
Hadith number 4020, Al- Sunan Al- Kubra lil Nasai, Kitab Al-
Khulawa al- Talaq, Hadith number 14932).

c) When Abdullah Ibn Umar divorced his wife once while she
was having menses. The Prophet (Pbuh) asked him to retain
his wife saying: You acted against Sunnah. Abdullah ibn
Umar asked: Had I resorted to Triple Talaq then, could I
 13
retain her? The Prophet (Pbuh) replied: No. Such an action
on your part would have been a sin (Sunan Bayhaqi, 7, 334,
Hadith number: 14955).

d) Similarly, yet another instance is of Aishah Khathmiya, who

was Hasans wife. Hasan pronounced upon her Triple Talaq.
After her waiting period (Iddat) when he sent her a gift, she
said: This is a very small gift from the beloved from whom I
have been separated. On learning this, Hasan broke into
tears, saying: Had I not heard from my grandfather the
prohibition about such a woman, I would have taken her back
in marriage. He commanded that if one has pronounced Triple
Talaq upon his wife, even if she is menstruating or in one go,
he cannot remarry her, unless she marries another person.
(Al- Sunan Al- Kubra lil Bayhaqi, Hadith number 14492).

7.6 There is no hadith of the Prophet (PBUH) stating that

pronouncement of triple talaq in one instance/sitting is not valid or
ineffective, rather, in view of a direct command of the Prophet
(PBUH) (Messenger), no Muslim can be said to have any choice in
the matter and thus even though Triple Talaq in one go is an
undesirable form of divorce, the dissolution of marriage thereafter is
incumbent.

7.7 Further, as mentioned above, the Holy Quran ordains that once
three pronouncements of talaq are made, the wife becomes unlawful
or Haram to her former husband, unless the process of halala takes
place in its natural course. The pronouncement of third talaq and its
irrevocability is explicitly given in Quran (Surah-Al-Baqarah 2:230).
In such circumstances, it is forbidden for the former husband to take
the wife back into marriage again, unless she marries another
person of her choice and such marriage comes to an end owing to
death or by divorce. Therefore, there is no bar upon her to marry yet
again with person of her choice and this time she may out of her own
free will agree to marry her former husband. The objective is to
enable a divorcee woman to remarry out of her own free will and
choice. The rule also achieves the objective of protecting a divorcee
(on whom triple talaq is pronounced) from being forced into marital
relation with anyone particularly by former husband who may be in a
position to apply force upon her and restrain her from marrying
another person of her choice; a peculiar threat of male chauvinism
dominant in male dominated society. So far as the rule also serves
the other object of removing taboo upon widow remarriages as there
is a clear indication that in the event of the second marriage of a
divorcee to another person of her choice ending in the death of her
second husband, she is free to remarry out of her own free will with
her former husband.
 14
7.8 Any deviation from such a Quranic injunction would be going against
the ipsissima verba of Almighty himself and such an act would be
going against the very integral practice of Islam and would be
disregarding the precise directions of Allah and also his messenger,
Prophet (PBUH), which is nothing but a sin and as per the Holy
Quran (Surah-Al-Ahzab 33:36), such an action would show that the
believer has strayed away from the religion in manifest error.

7.9 Furthermore, as ordained by the Holy Quran, all Muslims are bound
to accept the command of the Messenger and are bound to avoid
whatever the Messenger forbids (Surah-Al-Hashr 59:7) and when
the Prophet has categorically directed separation of parties after
Triple Talaq in one go and has ruled that if the former husband takes
the woman back into marriage, he will be committing a sin (Sunan
Bayhaqi, 7, 334, Hadith number: 14955), then no believer has a
choice to take the woman back into marriage after pronouncing
Triple Talaq and such an act is nothing but a sin. Moreover, the
consequences of committing such a sin would be far more adverse
as the children born out of such a relationship would be illegitimate
and their rights of inheritance in his putative fathers estate would
also be questionable.

7.10 In view of the aforementioned, if this Honble Court holds that Triple
Talaq in one sitting is not a valid form of effecting a divorce, then that
would amount to re-writing the Holy Quran itself, which is nothing but
the ipissima verba of the Almighty himself and is the entire genesis
of Islam. Such an alteration of the specific verses of the Holy Quran
would actually amount to altering the very essence of the religion of
Islam.

7.11 It is submitted that the Holy Quran provides a comprehensive way of

life for each Muslim and it is nothing but the direct word of Allah
himself and any modification/dilution in the text of this Holy Book
would amount to erasing the very basis of the entire religion of Islam,
which is not permissible in view of the protection guaranteed by
Article 25 of the Constitution of India. If such casual denunciation of
the verses of the Holy book is permitted, then soon the religion of
Islam would cease to exist.

7.12 Accordingly, it is submitted that though Triple Talaq in one sitting is

an unusual mode of divorce in Islam, it cannot be declared to be
invalid in the light of the direct verses of the Holy Quran and
categorical command of the Messenger of Allah.

II. Re Halala

7.13 The concept of halala is misunderstood by the Petitioners/

Opponents. It is submitted that when a Muslim woman is divorced,
 15
she is prohibited from marrying her former husband unless she has
an intervening marriage with another man, this concept of
intervening marriage is distortedly called nikah halala by the
Petitioners/Opponents. There is no concept of nikah halala in
Islamic Jurisprudence. Further, this concept of halala is grossly
misunderstood, it is submitted that this procedure needs to be
followed only if the woman has been divorced from her first husband
by way of Triple Talaq. In fact, out of nine permissible forms of
separation/talaq/divorce, eight forms of separation/talaq/divorce put
no bar to take wife back into the marriage. However, there is only
one form i.e. irrevocable tripe talaq wherein Shariat law bars taking
wife back into the marriage unless the divorce wife enters into
second marriage as per her choice and free will with another man.
Further, the intervening marriage of the woman should happen in
usual course, with the solemn intention of living with the subsequent
husband, and the consequent separation should also be under
natural course due to his death or divorce. It is relevant to mention
that none of the schools of Islamic Jurisprudence validate, approve
or advocate any marriage which is solemnized with the ulterior
motive of by passing the irrevocable effect of Triple Talaq. In fact,
there are unequivocal and unambiguous Hadiths of the Prophet
Muhammad (PBUH) where mock marriages and mock divorces are
reported to be a cause of curse from the Almighty Allah. It is in the
said Hadiths that the reference to the term Halala is found, though
it is not mentioned in the Noble Quran. Whereas in any case, the
term Nikah Halala is not found even in Hadith. The Hadith of the
Prophet Muhammad (Peace be upon Him) in condemning Halala
are as follows:

Allahs curse is on the one who makes a contract or

agreement for Halala (Both the one who carries out Halala
and the one who it is done for. (Sunan al Darami / Mishkat al
Masabih)

Allah has cursed the muhallil (one who marries a woman and
divorces her so that she can go back to her first husband) and
the muhallal lahu (first husband).

7.14 It is pertinent to note that even though the term halala has not been
mentioned in the Holy Quran, this condition of halala has been
specifically provided in the Holy Quran (Al- Baqarah 2:230) and that
it is mandatory for all believers to follow the diktat of the Holy Quran
(Surah-Al-Nisa 4:59, Surah-Al-Anfal 8:20) and no deviation
therefrom is permitted (Surah-Al-Ahzab 33:36 and Surah-Al-Hashr
59:7). Consequently, if the former husband, who had effected
divorce by pronouncing Triple Talaq, takes his ex-wife back into
marriage halala taking place in its natural course, he will be
 16
committing a sin, the consequences of which would be far more
disastrous. It is reiterated that the children born out of such a
relationship would be illegitimate and their rights of inheritance in his
putative fathers estate would also be questionable.

7.15 It is further reiterated that since halala has been specifically provided
in the Holy Quran (Surah- Al- Baqarah 2:230), which is nothing but
the ipissima verba of the Almighty himself, any alteration or
denunciation thereof, would mean disregarding the specific verses of
the Holy Quran which would actually amount to altering the very
essence of the religion of Islam, which is not permitted.

III. Re Polygamy

7.16 Coming to polygamy, it is submitted that the Quran, Hadith and the
consensus view allow Muslim men to have up to 4 wives at a time.
Though polygamy is permitted, it is not obligatory or encouraged;
rather, jurists regard monogamy as a better practice in usual
conditions. However, Polygamy meets social and moral needs and
the provision for it stems from concern for women. The policy of
Islam is to discourage Polygamy but not to prohibit it. Islam
encourages monogamy but does not make it mandatory.
The Quran lays down this permission thus:-

If you fear that you will not do justice to the orphans, then,
marry the women you like, in twos, in threes and in fours. But,
if you fear that you will not maintain equity, then (keep to) one
woman, or bondwomen you own. It will be closer to abstaining
from injustice. [Surah-Al-Nisa, 4:3]

7.17 All jurists therefore maintain that one may have up to four wives.
However, this permission is tied up with justice to all. Only he who
can treat all his wives equally in fulfilling his obligations to them may
have more than one wife.

7.18 There is a severe warning for him who does not treat his wives
justly. The Prophet (PBUH) cautioned: If one has two wives and
does not treat them justly, he will appear on the Day of Judgment as
one afflicted with paralysis. (Al-Mustadraklil Hakim, Kitab Al-Nikah,
Hadith number: 2759)

7.19 Muslim jurists maintain that one should rest content with a single
wife. The Quran, no doubt, allows taking more than one wife.
However, it does not prescribe it as something mandatory, or even
desirable. Yet, since polygamy is endorsed by primary Islamic
sources, it cannot be dubbed as something prohibited. This is
because, as per the Holy Quran, if something has been declared as
lawful by the Almighty then no one else can prohibit it (Surah- Al-
 17
Tahrim, 66:1). The Quran proclaims: O Prophet, why do you ban
(on yourself) something that Allah has made lawful for you, seeking
to please your wives? And Allah is Most-Forgiving, Very-Merciful
[Surah- Al-Tahrim, 66:1]

7.20 The aforesaid verse forbids that a lawful thing should be declared as
unlawful by anyone. When even the Prophet (PBUH) did not have
this privilege, no one else can prohibit something lawful. Elsewhere,
the Quran says: Say, Who has prohibited the adornment Allah has
brought forth for His servants, and the wholesome things of
sustenance? [Surah-Al-Araf 7:32]. One is thus not authorized to
forbid what Allah has made lawful

7.21 Thus, it is clear from the above that something declared lawful by the
Quran and Hadith, even if it be not something desirable, cannot be
forbidden by State or by judicial pronouncement, for it amounts to
denying people their due. Thus, when the Quran categorically
permits polygamy, and also directs that the practices permitted by
the almighty cannot be forbidden by anyone else, not even the
Prophet (PBUH), in such circumstances, disallowing or forbidding
polygamy would actually amount to flagrant disregard of the Holy
Quran and would lead to alteration of the verse of the Holy Book ,
which is the foundation of the religion of Islam and the essence of
which cannot be diluted by modifying or supplanting a different view
than what has been prescribed by the Almighty himself. It is
reiterated that the Courts ought not to supplant their own views in
place of the verses of the Holy Quran, particularly when the
practices ordained by the Holy Quran are essential part of the
religion of Islam as Quran provides a comprehensive way of life for
each Muslim and it is nothing but the direct word of Allah himself.

7.22 In view of the above, it is submitted that Talaq, Halala and Polygamy
are all an integral part of religion of Sunni Muslims following four
schools of thought provided by the Holy Quran and thus being
essential to the religion of Islam are protected by virtue of Articles
25, 26 and 29 of the Constitution.

7.23 It is quite manifest that the evolving legal culture in India recognizes
sexual relationship by a man outside his marriage. Under the
Protection of Women from Domestic Violence Act, 2005, a live-in
relationship is recognized and the woman who is in a live-in
relationship is given rights of maintenance and residence. The legal
provisions clearly reflect the moral/normative standards prevalent in
the society, that being the case, a man taking more than one wife
through marriage cannot be stigmatized as immoral.
 18
8. Whether the provisions of the Muslim Personal laws sought to
be reviewed by way of the present Petitions are protected by
Articles 25 and 26 read with Article 29 of the Constitution of
India?

8.1 It is submitted that the issue of Muslim Personal Law is a cultural

issue which is inextricably interwoven with religion of Islam. Thus, it
is the issue of freedom of conscience and free profession, practice
and propagation of religion guaranteed under Article 25 and 26 read
with Article 29 of the Constitution of India.

8.2 The protection of Article 25 and 26 is not limited to matters of

doctrine or belief, but it extends to the acts done in pursuance of
religion.

8.3 It is submitted that the principles of marriage and divorce differ in

each religion. Each religion views these principles in a different
context and therefore the principles in each religion are unique and
peculiar to that particular religion only. In such circumstances, one
cannot look at the validity of the principles of one religion or judge
them as being unequal with the rights in another religion because
the principles in each religion are peculiar to only that religion and
these principles have been cloaked with the protection under Article
25, 26 and 29 so as to preserve the uniqueness of each religion.

8.4 It is submitted that this Honble court in Syedna Taher Saifuddin

Saheb v. State of Bombay, 1962 Supp (2) SCR 496 had held that
the protection of Articles 25 and 26 was not limited to matters of
doctrine or belief but they extended also to acts done in pursuance
of religion and therefore contained a guarantee for rituals and
observances, ceremonies and modes of worship which are integral
parts of religion. It was also held that what constituted an essential
part of religion or a religious practice had to be decided by the
Courts with reference to the doctrine of a particular religion and
included practices which are regarded by the community as a part of
its religion.

9. Whether International instruments to which India is

party/signatory or domestic practices of foreign countries can
have a bearing on the issues in the present petition?

I. Re International Conventions

9.1 It is submitted that this issue has arisen because of the prevailing
misconception that Islam discriminates against women. Most of the
International Conventions cited by other parties relate to general
resolutions/declarations of women rights for upliftment of status of
women in the Society.
 19
9.2 Before the advent of Islam, women had very few rights, if any. The
practice of female infanticide was rampant and it was not uncommon
for small girls to be buried alive during times of scarcity. Islam
spread a revolutionary message at that time and uplifted the status
of women in the society. Islam put an end to female infanticide and
forbade the practice. The Holy Quran also provided for equality of
sexes in stature and worship. In fact the Prophet Mohammeds wife,
Khadija was herself a financially independent businesswoman.

9.3 Further, Islam was the first religion in the world to give property
rights to women. In Europe, until the 19th Century women did not
have the right to own property. While Britain was perhaps the first
country to give property rights to women by passing the Married
Women Property Act in 1860, more than 1400 years ago, the right
was clearly established in Muslim Personal Law. Furthermore, Islam
was the only religion at that time which provided women to choose
their life partner.

9.4 Additionally, during the reign of Caliph Umar, women participated in

law making. In fact in the most authentic collection of Hadith, Hadith
Bukhari, a section is devoted to the participation of women not only
in public affairs, but in the battlefield too. (Al-Sunan Al-Kubra lil
Bayhaqi, Kitab Al-Nikah, Hadith number: 14336)

9.5 These are only a few examples of the propagation of equal status of
women in Islam. Coming to the present-day conventions, the main
allegation that has been made is with respect to Convention on the
Elimination of all forms of Discrimination against Women (CEDAW),
United Nations Universal Declaration of Human Rights (UDHR),
International Covenant of Economic, Social & Cultural Rights,1966
and International Covenant of Social & Political Rights,1966.

9.6 With regard to the ratification of CEDAW, it is submitted that India

has made certain declarations and reservations to CEDAW. These
declarations/ reservations were first made upon signature and then
confirmed upon ratification. The first declaration made by India, was
with a view to protecting the cultural/religious practices of the various
minorities including Tribes in India. The declaration reads as
follows:-

"i) With regard to articles 5 (a) and 16 (1) of the Convention on

the Elimination of All Forms of Discrimination Against Women,
the Government of the Republic of India declares that it shall
abide by and ensure these provisions in conformity with its
policy of non-interference in the personal affairs of any
Community without its initiative and consent.
 20
9.7 Thus, in view of the above, it is clear that India has itself committed
that it will not interfere with the personal affairs of any community
without the initiative and consent of the concerned community itself.
Accordingly, this positive obligation imposed upon itself by India,
cannot be ignored while looking at the provisions of CEDAW. It is
therefore submitted that since there has been no request or initiative
by the members of the Muslim Community for change, modification
or amendment of its personal laws pertaining to marriage, divorce
and maintenance, such policy change cannot be thrusted upon them
in the name of social reform.

9.8 It has been stated by the Union of India that UDHR, International
Covenant of Economic, Social & Cultural Rights, 1966 and
International Covenant of Social & Political Rights, 1966 lay stress
on equality between men and women. It is submitted that Islam
always considered men and women equal, this is substantiated by
the following:-

a) In Islam both, the male and the female are equal in terms of
their humanity. Islam does not categorize women, for
instance, as the source of evil in the world for some & original
sin that caused Adam (PBUH) to be dismissed from Paradise,
or to be the cause of evil in the world by setting loose a
Pandora's box of vices, as reflected in some fables. The
following verses from the Holy Quran depict the underlined
equality between men and women:-

O men, fear your Lord who created you from a single

soul, and from it created its match, and spread many
men and women from the two. Fear Allah in whose
name you ask each other (for your rights), and fear (the
violation of the rights of) the womb-relations. Surely,
Allah is watchful over you. [Surah-Al-Nisa 4:1]

Does man presume that he will be left unchecked?

Was he not an ejaculated drop of semen? Then he
became a clot of blood, then He created (him) and
made (him) perfect, and made from him two kinds, male
and female. Has He no power to give life to the dead?
[Surah- Al- Qiyamah 75:36-40]

b) Thus as is evident, Allah illustrated in the verses that he

created both sexes from one single source. There is no
difference between the two sexes in terms of qualifications in
humanity, and each complements the other as the two
genders of the species. Islam has abolished and abrogated all
the previous unjust laws that demoted women as inferior in
quality and nature. The Prophet of Allah (PBUH) said:
 21
Verily, women are the twin halves of men.
[Abu Dawood #234, Tirmidhi #113 & others]

c) Further, in equal religious duties and rituals are required from

both women and men. Testimony of Faith (Shahaadah),
Prayer (Salah), Obligatory Charity (Zakah), Fasting (Saum),
and Pilgrimage (Hajj) are equally required of both genders. In
some cases the requirements are a bit easier on women to
alleviate their special cases of hardship.

d) Both males and females have similar rewards for obedience

and penalties for disobedience in this world and hereafter. As
stated by Allah in the Holy Qur'an:

Whoever, male or female, has acted righteously, while

being a believer, we shall certainly make him live a
good life, and shall give such people their reward for the
best of what they used to do. [Surah -Al-Nahl16:97]

Surely, Muslim men and Muslim women, believing men

and believing women, devout men and devout women,
truthful men and truthful women, patient men and
patient women, humble men and humble women, and
the men who give Sadaqah (charity) and the women
who give Sadaqah, and the men who fast and the
women who fast, and the men who guard their private
parts (against evil acts) and the women who guard
(theirs), and the men who remember Allah much and
the women who remember (Him) for them, Allah has
prepared forgiveness and a great reward[Surah -Al-
Ahzab33:35]

e) Women have the same moral obligations and are entitled to

the same general rights as men in guarding chastity, integrity
and personal honour and respect, etc. No double standards
are allowed. For instance, those who falsely accuse a chaste
woman of adultery or fornication are publicly punished, just as
if a man is slandered. Allah, the Exalted, states in the Holy
Qur'an:

Those who accuse the chaste women (of fornication),

but they do not produce four witnesses, flog them with
eighty stripes and do not accept their any evidence any
more. They are the sinners [Surah-Al-Nur 24:4]

f) Women are equally qualified and allowed to engage in

financial dealings and property ownership. According to
Islamic law women can own, buy, sell and undertake any
financial transaction without the need for guardianship, and
 22
without any restrictions or limitations - a situation unheard of in
many societies until modern times.

g) Islam indicates that a man who honours, respects and deals

with women justly and integrally, possesses a healthy and
righteous personality, whereas a man who mistreats them is
an unrighteous and unrespectable man. Prophet Mohammed
(PBUH) said:

The most complete believer is the best in character, and

the best of you is the best to his womenfolk. [Tirmidhi
#1162 and verified]

h) Islam entitles women to the same rights as men in terms of

education and cultivation. Prophet Mohammed (PBUH) said,
as reported and authenticated by the scholars of prophetic
traditions:

Seeking knowledge is compulsory for each and every

Muslim (i.e. both male and female). [Ibn Majah #224 al-
Baihaqi and verified]

i) Muslim scholars unanimously hold that the word Muslim when

used in revealed scriptures includes both male and female.
Thus, Islam entitles women to the same right of education in
order to understand the religious and social obligations, and
obligated them both to raise their children in the best manner,
in accordance with the right Islamic guidance. Of course,
women have certain obligations in bringing up their children
that commensurate to their abilities and men have
complementary obligations to finance, protect and maintain
according to their added responsibilities in the family unit. The
Prophet (PBUH) said:

Whoever takes care of two girls until they reach

puberty, he and I will come on the Day of Resurrection
like this. [Muslim #2631]

The Messenger of Allah (peace be upon him) then joined his

fingers to illustrate this.

j) Men and women have similar obligations and responsibilities

to reform and correct the society to the best of their capability.
Men and women shoulder the responsibility of enjoining good
and forbidding evil equally, as Allah, the Exalted, states in the
Holy Qur'an:

The believers, male and female, are friends to each

other. They bid virtue and forbid vice and establish
Salah and pay Zakah and obey Allah and His
 23
Messenger. Those are the ones whom Allah will bless
with mercy. Surely, Allah is Powerful, Wise. [Surah -Al-
Tawbah9:71]

k) Men and women have set and determined rights to receive

their fair share of wealth, just as they are obliged to give
Zakah (Obligatory Charity) according to the set calculation. All
Muslim scholars unanimously agree upon this. A woman has
her set share of inheritance, which was a right unthinkable in
many societies. Allah (The Almighty) says in the Holy Quran
that:

For men there is a share in what the parents and the

nearest of kin have left. And for women there is a share
in what the parents and the nearest of kin have left, be it
small or large__a determined share. [Surah- Al-
Nisa4:7]

l) A woman, just like a man, can give someone the right of

seeking refuge and security among the Muslims [Bukhari
#3008]. This is also proven by the famous story of Um Hani'
(Mother of Hani') when she gave protection to a polytheist
who sought refuge with her on the day of the conquest of
Makkah after her relative threatened to kill that person (for
some past enmity) so the Messenger of Allah (Peace be Upon
Him) said,

We protect and give asylum to whomever you give

asylum O Um Hani. [Bukhari #350]

9.9 Thus, in view of the above, it is submitted that it is a misconception

that the Muslim personal laws particularly laws relating to marriage
and divorce discriminate against women; in fact it was one of the first
religions to grant equal rights to women. This is also evident from the
following verse:

So, their Lord answered their prayer: I do not allow the

labour of any worker from among you, male or female, to go to
waste. You are similar to one another. [Quran, Surah-Al-
Imran 3:195]

9.10 Islam recognizes the hard facts of nature. There are differences in
physical, mental and psychological qualities, inclination and abilities
of two genders namely male and female. The Policy of Islam to
achieve equality between two genders is to adjust the rights
conferred and obligations imposed on the two genders and achieve
equilibrium of rights and obligations on men and women. Islam does
not believe in mathematical equality between the sexes but believes
in establishing equilibrium between rights and obligations between
 24
men and women and achieve equality between them. Allah, the
Exalted and Almighty, says in the Holy Qur'an:

And from every thing We have created pairs of twos, so that you
may heed [Surah-Al- Dhariyat 51:49]

9.11 Thus in view of inherent differences between a man and a woman,

Islam distributes the duties between a man and a woman, in a way
that the role of one complements the role of other. Consequently,
since the duties of men and women are earmarked, their rights are
underlined by the personal laws.

a) The United Nations Universal Declaration of Human Rights

states that marriage shall be entered into only with free and
full consent of the intending spouses. Likewise, Islam protects
womens freedom to choose her own marriage partner and
describes the marital relationship as one of affection and
mercy. The Qur'an states:

"And it is among His signs that He has created for you

wives from among yourselves, so that you may find
tranquility in them, and He has created love and
kindness between you. Surely in this there are signs for
a people who reflect [Surah-Al-Rum 30:21]

b) There are ample examples in the Sunnah, practices of the

Prophet, where the Prophet protected a womans right to
choose her own spouse and even nullified the agreement if
forced against her will. Ibn Abbas reported that a girl came to
the Messenger of God, Muhammad, and she reported that her
father had forced her to marry without her consent. The
Messenger of God gave her the choice, between accepting
the marriage or invalidating it. In another version, the girl said:

"Actually I accept this marriage but I wanted to let

women know that parents have no right [to force a
husband on them]. [Ibn Maja, No. 1873]

c) The Qur'an (Surah-Al-Nisa4:21) refers to marriage as

a mithaq, i.e. a solemn covenant or agreement between
husband and wife, and enjoins that it be put down in
writing. Since no agreement can be reached between the
parties unless they give their consent to it, marriage can be
contracted only with the free consent of the two parties. The
Prophet (PBUH) said:

"The widow and the divorced woman shall not be

married until their consent is obtained, and the virgin
 25
shall not be married until her consent is obtained" (Al-
Bukhari).

This aspect is greatly emphasized by Imam Bukhari. He, in

fact, gave one of the chapters in his Sahih the significant title:

"When a man gives his daughter in marriage and she

dislikes it, the marriage shall be annulled."

d) She enjoys property and inheritance rights. She can also

conduct her own separate business. [Quran, Surah-Al-
Nisa 4:7]

e) The dowry in Islam is a gift from a husband to his wife. [Quran,

Surah-Al-Nisa 4:4]

f) A Muslim widow is allowed to remarry, and her remarriage is

the responsibility of the Muslim society. [Quran, Surah-Al-
Baqarah 2:234]

g) In Islam, re-marriage of a widow has been greatly

emphasized. At the same time, it has also been often stated
that people, who bring up orphans, are very dear to Allah
(swt). This should give a very good idea, as to what is the
reward for someone who gets married to a widow and
supports her children from her deceased husband.

h) A giver of maintenance to widows and poor is like a giver in

the way of Allah (swt), an utterer of prayers all night and
fasting during the day. [Bukhari]

i) I and the person, who brings up an orphan, will be like this in

Heavens, said Prophet Muhammad (sa), and he put his index
and middle finger together. [Bukhari]

9.12 As averred above, Islam has been one of the first religions to grant
these rights to women. In fact, most of the religions in India are till
date still struggling with the evils like female infanticides, exploitation
of widows, dowry problems, when Islam had clear laws to counter
such problems as far as in 629 AD632 AD. In fact even the right of
a woman to seek divorce was first recognized in Islam only. Muslim
Women have rights to seek divorce under Muslim Personal Law, in
the form of Khula or Faskh.

9.13 It is submitted that all the international conventions which have been
cited by the other parties focus only on the issue of equality of
women, uplifting their status and the cause of gender justice. In view
of the aforementioned, it is clear that Islam was the first religion to
grant equal status to women and that was almost around 1400 years
ago before any nation of the modern world acknowledged these
 26
rights. Further, in view of the division of roles of a man and a woman
as per the Holy Quran, both the man and the woman have been
given roles which complement each other and thus their rights and
liabilities have also been balanced accordingly. Thus, it cannot be
said that Muslim Personal Law has not provided equal status to
women and that India has failed to keep up with any of its
international obligations in relation to gender justice due to the
prevailing Muslim Personal Laws.

9.14 It is submitted that reference to international covenants/instruments

in the context of womens right under Islam is inappropriate. Article 1
of ICESCR and Article 27 of ICCPR recognize group rights for
development of culture as well as religious identity of the minorities
even if the reference to the international instruments are to be made
then in that event the same must be read holistically and the just
equilibrium is to be achieved between rights of individual and rights
of group enshrined in such instruments. It is submitted that Muslim
Personal Law achieves the just balance between group rights and
individual rights and there is no conflict as such. For easy reference
the said Articles are stated below:

Article 1 of ICESCR,

All peoples have the right of self-determination. By virtue of

that right they freely determine their political status and freely
pursue their economic, social and cultural development.

Article 27 of ICCPR,

In those States in which ethnic, religious or linguistic

minorities exist, persons belonging to such minorities shall not
be denied the right in community with the other members of
their group, to enjoy their own culture, to profess and practice
their own religion, or to use their own language.

9.15 Even Article 4(2) of the U.N. General Assembly Resolution on

Declaration on the Rights of the persons belonging to National or
Ethnic religious and linguistic minorities 1992 provides that, States
shall take measures to create favourable conditions to enable
persons belonging to minorities to express their characteristics and
to develop their culture, language, religion, traditions and customs,
except where specific practices are in violation of national laws and
contrary to international standards. Thus, it is clear that every
section of the Indian citizen has a right to conserve and develop their
culture and family laws based on religion and therefore is immune
from State interference.
 27
9.16 Moreover, Universal Declaration on Cultural Diversity, 2001
reaffirms that culture should be regarded as the set of distinctive
spiritual, material, intellectual and emotional features of society or a
social group, and that it encompasses, in addition to art and
literature, lifestyles, ways of living together, value systems, traditions
and beliefs and thus India, being a signatory to the same must also
give due regard to the cultural uniqueness of Muslim Personal Laws
which are a part of their religious and cultural identity.

9.17 It is submitted that there is an universal urge to preserve ones

identity. In India with its vast size and its people professing and
practicing different ethnicity, belonging to different religions, it is but
natural to expect different groups of people to have the urge to
preserve their identity and there is distinction between cultural,
religious, regional and linguistic identity. In fact, the preservation of
culture being the basic feature of the fundamental right guaranteed
under the Indian Constitution, any interference with the same would
lead to violation of Constitutional principles.

i. Re Foreign Laws

9.18 Muslim Personal Law as followed by Indian Muslims is based on four

schools of Sunni persuasion and thus, changes made in other
countries following myriad schools of law, belonging to different
sects and cultures cannot serve as a guide for bringing about
changes to the Shariah law in our country. The changes to Muslim
Personal law which is contrary to or inconsistent with the Holy Quran
and other sources based on it would be in direct conflict with the
religious freedom guaranteed to Muslims, who follow the Shariah law
as per their faith.

9.19 Pertinently, the alleged changes/reforms in Muslim Personal laws in

foreign regimes are not relevant. It is relevant to mention that the
practices under challenge are essential part of religion of Sunni
Muslims pursuing four schools. However, changes, if any, can be
brought about by legislatures within Constitutional parameters. In
fact this principle has been elaborated by this Honble Court in Riju
Prasad Sarma v. State of Assam (2015) 9 SCC 461(at page 497):

But in a pluralist society as existing in India, the task of

carrying out reforms affecting religious beliefs has to be left in
the hands of the State. This line of thinking is supported by
Article 25(2) which is clearly reformist in nature. It also
provides scope for the State to study and understand all the
relevant issues before undertaking the required changes and
reforms in an area relating to religion which shall always be
sensitive. While performing judicial functions strictosensu, the
Judiciary cannot and should not be equated with other organs
 28
of Statethe Executive and the Legislature. This also fits in
harmony with the concept of separation of powers and spares
the judiciary or the courts to dispassionately examine the
constitutionality of State action allegedly curbing or curtailing
the fundamental rights including those under Articles 25.

9.20 Additionally, parliamentary democracy and separation of powers

between the executive, legislature and the judiciary are a part of the
basic structure of the Constitution of India. In view of the foregoing, it
is clear that the changes sought through this Honble Court in
Muslim Personal laws on the aegis of the laws of foreign countries
are thus in conflict with the principles of democratic principles as
enshrined in the Constitution of India, as the impugned principles of
Muslim Personal Law can be changed, if at all only by way of
legislative process and in consonance with the purpose and the
spirit of Parliamentary Democracy and Constitutional parameters.

9.21 It is humbly submitted that Courts must not indulge in areas

concerning state policy and as aptly put by Judge Koopmans,
Democracy and human rights are, empirically speaking, closely
connected; protection of one at the expense of the other therefore
always runs the risk of being counterproductive if we want to retain
democracy, the courts should face their share of job [Koopmans,
Legislature and Judiciary: Present Trends in New Perspectives for
Common Law of Europe 337 (1978)]. Besides, in the land mark case
of Dennis vs. U.S. 330 U.S .48 (1950), Justice Frankfurter had
observed:

Courts are not representative bodies. They are not designed

to be a good reflex of a democratic society. Their essential
quality is detachment, founded on independence. History
teaches that the independence of the judiciary is jeopardised
when Courts become embroiled in the passions of the day,
and assume primary responsibility in choosing between
competing political, economic, and social pressures.

9.22 In any event, changes made by foreign countries in Muslim Personal

Law, their understanding of the Muslim Personal Law cannot be the
basis of interpretation by this Honble Court. Merely because several
other nations have carried out an amendment in their laws, cannot
be the basis for this Honble Court to supplant foreign laws into
Indian context by surpassing the democratic legislative process.
 29
9.23 Thus, any interference with Muslim laws would be stepping into the
domain of the Legislature. Further, in Asif Hameed vs. The State of
J&K, (AIR 1989 S.C. 1899) this Honble Court observed:

Although the doctrine of separation of powers has not been

recognised under the Constitution in its absolute rigidity, the
Constitution makers have meticulously defined the functions of
various organs of the State. The legislature, executive, and
judiciary have to function within their own spheres demarcated
in the Constitution. No organ can usurp the function of
another. -- While exercise of powers by the legislature and
executive is subject to judicial restraint, the only check on our
own exercise of power is the self-imposed discipline of judicial
restraint.

9.24 In view of the aforesaid, it is humbly submitted that this Honble

Court ought not to venture into the area of changing Personal laws
by following the trend in several other countries. It is pertinent to
note that any change or reform that comes with the backing of
legislature takes due care of diverse cultural background, sensitivity
and sensibility of the stakeholder community and thus is in spirit
adheres to both the principles i.e. the principle of democracy and the
principle of separation of powers. It is important to note that changes
in other countries, with a distinct socio- cultural and even legal back
ground must not be applied in Indian context, without appreciating
the distinct nature of the Indian society, as doing so shall not only
destroy the democratic legislative process underlined in the
Constitution of India but it shall also be great injustice to the
followers of Islam in our nation.

Filed by

EJAZ MAQBOOL
Advocate for the Respondent No.3 in Suo
Motu Writ Petition (Civil) No.2 of 2015 and
Respondent No.7 in Writ Petition (Civil)
No.118 of 2016

New Delhi
Dated: 27.03.2017

SETTLED BY:-
1) Mr. Raju Ramachandran, Senior Advocate
2) Mr. Yusuf Hatim Muchhala, Senior Advocate